IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 125

State of North Dakota, Plaintiff and Appellee

v.

Bret Nathaniel Tho Sullivan, Defendant and Appellant

No. 20220337

Appeal from the District Court of Burleigh County, South Central Judicial 

District, the Honorable Pamela A. Nesvig, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Omid Kardoust, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and 

appellee.

Chad R. McCabe, Bismarck, N.D., for defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JULY 7, 2023 

STATE OF NORTH DAKOTA
1

State v. Sullivan

No. 20220337

Tufte, Justice.

[¶1] Bret Sullivan appeals from a corrected criminal judgment after he pled 

guilty to driving under the influence in violation of section 39-08-01(1)(a), 

N.D.C.C. We affirm.

[¶2] Corporal Harold Rochester stopped Sullivan’s vehicle because it was 

speeding and failed to remain in its lane. Corporal Justin Hoag was called to 

assist Rochester. Hoag decided to arrest Sullivan because of the information 

Rochester told him and because Sullivan’s vehicle emitted an alcoholic odor, 

Sullivan had glossy and bloodshot eyes, and he admitted to having consumed

alcohol.

[¶3] Sullivan moved to suppress the evidence resulting from the arrest, and 

the court denied his motion. On appeal, Sullivan argues the court erred in 

finding that he received a sufficient advisement regarding the cause of his 

arrest under N.D.C.C. § 29-06-17 and in finding that the officers had probable 

cause to arrest him.

I

[¶4] Our standard of review for a district court’s ruling on a motion to 

suppress is well established.

When reviewing a district court’s ruling on a motion to 

suppress, we defer to the district court’s findings of fact and resolve 

conflicts in testimony in favor of affirmance. We affirm the district 

court’s decision unless we conclude there is insufficient competent 

evidence to support the decision, or unless the decision goes 

against the manifest weight of the evidence.... While the 

underlying factual disputes are findings of fact, whether the 

findings support a reasonable and articulable suspicion presents a 

question of law which is fully reviewable on appeal.

State v. Suelzle, 2021 ND 194, ¶ 9, 965 N.W.2d 855 (quoting State v. James, 

2016 ND 68, ¶ 5, 876 N.W.2d 720).
2

II

[¶5] Sullivan argues that the police officer who arrested him violated section 

29-06-17, N.D.C.C., because the officer did not inform Sullivan of the cause of 

his arrest. He argues suppression of the evidence is the proper remedy for a 

violation of this statute. The State argues that Sullivan was sufficiently

informed under the statute because the circumstances of his arrest provided 

him with adequate notice and, alternatively, that the exception in N.D.C.C. 

§ 29-06-17(1) applies to this case and the officer was not required to inform 

Sullivan of the cause of his arrest.

[¶6] Section 29-06-17, N.D.C.C., provides:

When making an arrest without a warrant, the officer shall 

inform the person to be arrested of the officer’s authority and the 

cause of the arrest, unless:

1. The person to be arrested then is engaged in the 

commission of an offense;

2. Such person is pursued immediately after the commission 

of an offense or after an escape;

3. Such person flees or forcibly resists before the officer has 

opportunity so to inform the person; or

4. The giving of such information will imperil the arrest.

[¶7] We conclude that the officers were not required to inform Sullivan of the 

cause of his arrest because the first statutory exception applies.

[¶8] Sullivan was arrested while he was engaging in the commission of an 

offense. Individuals under age twenty-one are guilty of an infraction when they 

“consume or have recently consumed,” are under the influence of, or are in the 

possession of an alcoholic beverage. N.D.C.C. § 5-01-08(1). An infraction is an 

offense. N.D.C.C. § 12.1-32-01(7).

[¶9] Sullivan was driving a motor vehicle on a public road when he was 

stopped for speeding. Sullivan told Corporal Hoag that he was under age 

twenty-one at the time and had been consuming alcohol. There is sufficient 

evidence in the record to support the finding that Sullivan was engaging in the 

commission of an offense under N.D.C.C. § 5-01-08. The exception in N.D.C.C.
3

§ 29-06-17(1) therefore applies, and we need not consider the State’s argument

that the circumstances and context were sufficient to inform Sullivan of the 

cause of the arrest or Sullivan’s argument that suppression is the proper 

remedy for a violation of this statute.

III

[¶10] Sullivan argues that the arresting officers violated his constitutional 

rights under the Fourth Amendment to the United States Constitution and 

Article I, section 8 of the North Dakota Constitution because there were not 

sufficient facts to support a finding of probable cause that he was driving under 

the influence of alcohol before his arrest.

[¶11] Whether the facts rise to the level of probable cause to arrest is a 

question of law we review de novo. State v. Boehm, 2014 ND 154, ¶ 8, 849

N.W.2d 239. The Fourth Amendment to the United States Constitution, 

applicable to the states under the Fourteenth Amendment, and Article I, 

section 8 of the North Dakota Constitution prohibit unreasonable searches and 

seizures. N.D. Const. art. I, § 8; U.S. Const. amend. IV; see also State v. 

Morales, 2015 ND 230, ¶ 8, 869 N.W.2d 417. “An arrest is a seizure under the 

Fourth Amendment, and must be supported by probable cause.” State v. 

Terrill, 2018 ND 78, ¶ 7, 908 N.W.2d 732. All that is necessary to establish 

probable cause “is knowledge that would furnish a prudent person with 

reasonable grounds for believing a violation has occurred.” Id.

[¶12] There is probable cause to arrest a driver for driving under the influence 

of alcohol if a police officer first observes some signs of physical or mental 

impairment and also has reason to believe the driver’s impairment is caused 

by alcohol. Boehm, 2014 ND 154, ¶ 12. “Relevant factors in determining 

probable cause to arrest a person for DUI include the detection of the odor of 

alcohol, observation of signs of impairment, the person’s own words, and failure 

of one or more field sobriety tests.” Id. at ¶ 13. This Court determined there 

was probable cause that a person was driving under the influence when the 

individual had red and bloodshot eyes, admitted to consuming an alcoholic 

beverage, and failed the HGN test. Id. at ¶ 15 (citing Brewer v. Ziegler, 2007 
4

ND 207, ¶ 21, 743 N.W.2d 391). “A traffic violation and erratic driving are 

relevant factors in determining whether probable cause exists to arrest for an 

alcohol-related traffic offense.” Moran v. North Dakota Dep’t of Transp., 543 

N.W.2d 767, 770 (N.D. 1996) (citing Mayo v. Moore, 527 N.W.2d 257, 259-60 

(N.D. 1995)).

[¶13] Here, there was sufficient evidence to support the district court’s finding 

that Corporal Hoag had probable cause to arrest Sullivan for driving under the 

influence. Hoag testified that he smelled the odor of alcohol emitting from 

Sullivan’s vehicle, that Sullivan had bloodshot eyes or “red and glossy eyes,” 

and that Sullivan admitted he had “drank a few beers.” Finally, according to 

Hoag, Corporal Rochester observed Sullivan’s vehicle speeding and failing to 

maintain its own lane. On our de novo review, we conclude these facts rise to 

the level of probable cause.

IV

[¶14] We affirm.

[¶15] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr